2021 (4) TMI 387 - AT - Service Tax

Appeal allowed for remand on tax burden transfer issue in subsidized canteen case.

M/s Rakesh Canteen Contractor Versus Commissioner, Central Excise Customs & Service Tax, Ujjain, M.P.

The appeal was allowed for remand to the Adjudicating Authority as the appellant failed to prove that the tax burden was not passed on to the end users in ... Refund of CENVAT Credit amount to Consumer Welfare Fund - unjust enrichment - HELD THAT:- The appellant have not led evidence that there was no passing of the service tax burden to the end users of the canteen. In view of the contention of the learned Counsel at the bar that food has rather been given at subsidised rate, this appeal is allowed by way of remand to the Adjudicating Authority with the direction to examine the agreement between the appellant and M/s Caparo Engineering India Limited, as well as other relevant documents like costing of food, price charged from the end users. If it is found that the company M/s Caparo Engineering India Limited have not passed on the burden of the service tax to their employees/ workers, the amount of refund shall be paid to the appellant. The appeal is allowed by way of remand. Issues involved:Refund claim hit by unjust enrichment - Burden of proof on appellant - Passing on of tax incidence - Subsidized canteen services - Remand for further examination.Analysis:The appeal was filed against an order-in-appeal upholding the credit of a refund amount to the Consumer Welfare Fund, citing unjust enrichment. The Commissioner (Appeals) emphasized the burden of proof on the appellant to demonstrate that the tax incidence was not passed on. The appellant had a canteen services contract with another party, where initially the service tax was paid by them but later deducted, leading to the rejection of the refund claim. The Adjudicating Authority held that the appellant failed to prove that the tax burden was not transferred to the end users. The Commissioner relied on a Supreme Court judgment on unjust enrichment, emphasizing the statutory presumption of tax passing on unless proven otherwise.The appellant argued against the presumption of passing on the tax burden to canteen users, stating that the food was provided at a subsidized rate as per the agreement. The learned Counsel sought to overturn the decision, highlighting the subsidized nature of the services provided. On the other hand, the Revenue's Authorized Representative supported the impugned order, maintaining the position taken by the Adjudicating Authority.After considering the arguments, the Member (Judicial) found that the appellant failed to present evidence to counter the presumption of tax passing on to the end users. Acknowledging the subsidized rate argument, the appeal was allowed for remand to the Adjudicating Authority. The direction was given to examine the agreement and relevant documents to ascertain if the tax burden was indeed passed on to the employees. If it is determined that the burden was not transferred, the refund amount would be payable to the appellant. The appellant was instructed to appear before the Adjudicating Authority with a copy of the order to seek further clarification.In conclusion, the appeal was allowed for remand, emphasizing the need for a detailed examination of the agreement and costing of services to determine the passing on of the tax burden, ultimately impacting the refund claim based on unjust enrichment principles.